Google wins over Authors Guild
Google Books has won the latest round in its seemingly never-ending copyright-fair use battle with the Authors Guild over digitization of books for use online.
In a decision handed down Friday, the United States Court of Appeals for the Second Circuit affirmed the 2013 decision of a federal trial court that every aspect of Google’s book copying — including putting snippet views of copyright-protected works online without the permission of the copyright owners — constitutes a fair use under American law.1
The dispute between Google and the Authors Guild is one that the court itself said “tests the boundaries of fair use”:
Through its Library Project and its Google Books project, acting without permission of rights holders, Google has made digital copies of tens of millions of books, including Plaintiffs’, that were submitted to it for that purpose by major libraries. Google has scanned the digital copies and established a publicly available search function. An Internet user can use this function to search without charge to determine whether the book contains a specified word or term and also see “snippets” of text containing the searched-for terms. In addition, Google has allowed the participating libraries to download and retain digital copies of the books they submit, under agreements which commit the libraries not to use their digital copies in violation of the copyright laws. These activities of Google are alleged to constitute infringement of Plaintiffs’ copyrights.2
The specific arguments of the Authors Guild were that:
(1) Google’s digital copying of entire books, allowing users through the snippet function to read portions, is not a “transformative use” within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), and provides a substitute for Plaintiffs’ works; (2) notwithstanding that Google provides public access to the search and snippet functions without charge and without advertising, its ultimate commercial profit motivation and its derivation of revenue from its dominance of the world-wide Internet search market to which the books project contributes, preclude a finding of fair use; (3) even if Google’s copying and revelations of text do not infringe plaintiffs’ books, they infringe Plaintiffs’ derivative rights in search functions, depriving Plaintiffs of revenues or other benefits they would gain from licensed search markets; (4) Google’s storage of digital copies exposes Plaint iffs to the risk that hackers will make their books freely (or cheaply) available on the Internet, destroying the value of their copyrights; and (5) Google’s distribution of digital copies to participant libraries is not a transformative use, and it subjects Plaintiffs to the risk of loss of copyright revenues through access allowed by libraries.3
And the bottom line from the appeals court: “We reject these arguments and conclude that the district court correctly sustained Google’s fair use defense.”4
Now… some history.
The Authors Guild began its case against Google back in 2005, arguing that the online giant’s efforts to scan books for online use was a violation of the copyrights of the authors. And the Guild brought the suit as what’s called a class action.5
The complaint alleged that Google was infringing the authors’ copyrights by scanning books and by making snippets available online if the books were still under copyright protection. It sought statutory damages — which can run as high as $150,000 per violation,6 plus costs and attorneys’ fees.7 Google had estimated that, if it lost the suit, it could face billions of dollars in damage awards.8
In 2008, the two sides seemed to have reached a compromise that would settle the case with a payment of $125 million and the creation of a system where authors would share in future profits from the digitization project.9
But after years of wrangling over the settlement in the courts, the whole proposal was shot down by the trial judge in 2011. U.S. District Judge Denny Chin said the settlement did not meet the legal standards required for settlement.10
At that point, Judge Chin went on to decide that the Authors Guild and several individual authors could proceed with the case as a class action.11 That meant that the Authors Guild was allowed to act on behalf of every author affected by Google’s digitization, whether the author wanted to sue Google or not.
But the United States Court of Appeals for the Second Circuit decided in July 2013 that letting the case go forward as a class action made no sense when the real issue was whether Google’s digitization efforts qualified as a fair use under the copyright laws. So it threw out the class action decision and sent the case back to Chin to decide the fair use claim.12 And his opinion, issued in November 2013, was a complete win for Google.13
That’s the decision the Court of Appeals has now affirmed.
The appeals court judges unanimously ruled that:
Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them. The same is true, at least under present conditions, of Google’s provision of the snippet function. Plaintiffs’ contention that Google has usurped their opportunity to access paid and unpaid licensing markets for substantially the same functions that Google provides fails, in part because the licensing markets in fact involve very different functions than those that Google provides, and in part because an author’s derivative rights do not include an exclusive right to supply information (of the sort provided by Google) about her works. Google’s profit motivation does not in these circumstances justify denial of fair use. Google’s program does not, at this time and on the record before us, expose Plaintiffs to an unreasonable risk of loss of copyright value through incursions of hackers. Finally, Google’s provision of digital copies to participating libraries, authorizing them to make non-infringing uses, is non-infringing, and the mere speculative possibility that the libraries might allow use of their copies in an infringing manner does not make Google a contributory infringer.14
Much of the decision was no surprise, since the digitization-for-search-purposes issue had already been decided by the same Court of Appeals in the case the Authors Guild brought against Hathitrust.15 The one key thing that hadn’t been decided in the earlier case was whether Google could show snippets of any book that turned up in the search. And even on this issue, the Court sided with Google:
Snippet view adds important value to the basic transformative search function, which tells only whether and how often the searched term appear s in the book. Merely knowing that a term of interest appears in a book does not necessarily tell the searcher whether she needs to obtain the book, because it does not reveal whether the term is discussed in a manner or context falling within the scope of the searcher’s interest. For example, a searcher seeking books that explore Einstein’s theories, who finds that a particular book includes 39 usages of “Einstein,” will nonetheless conclude she can skip that book if the snippets reveal that the book speaks of “Einstein” because that is the name of the author’s cat. In contrast, the snippet will tell the searcher that this is a book she needs to obtain if the snippet shows that the author is engaging with Einstein’s theories.
Google’s division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whethe r the book falls within the scope of her interest (without revealing so much as to threaten the author’s copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher.16
So… we’re genealogists. Why do we care about this stuff?
We care for two reasons — and just as copyright law runs into conceptual problems because it tries to balance the interests of the public in having new works by protecting the interests of the creators of those new works, our two reasons can run head-on into each other and cause us problems too.
On one hand, as researchers, it’s terrific that we can keep the access we now have to search out and find new sources from digitized works — even copyright-protected works — online. In many respects, it makes it far simpler for us to locate derivative works relating to our families. I can think of a dozen books I’ve bought in the last year or two simply because I could find snippets on Google Books that demonstrated the overall value of the books for work I was doing.
And that’s a good thing.
But, on the other hand, it may very well be the last straw for some small publishers of specialized genealogical works. Despite the fact that Google’s snippet view doesn’t let anyone read an entire copyrighted work online, what is shown may be too much for our very specialized field.17
The problem is that, for many researchers, it’s one single fact contained in the book that’s at the heart of the value of the book. It’s that one fact we might buy the book to find. A marriage date. A will location. A maiden name. Once we get that one fact, there’s no reason for us to buy the book as a whole.
Without people buying books, exactly how are the specialty publishers going to stay in business? And without specialty publishers, how are new works of value to genealogists going to get published? And if new works of value to genealogists don’t get published, where are we?
It may be that this problem is an inevitable side effect of the digital age, and that — like newspapers and magazines and a host of other publishers — genealogical book publishers and genealogical book authors will have to find a way to adapt or perish.
But every one that perishes is a loss to our community.
- The Authors Guild et al. v. Google, Inc., No. 13-4829-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 16 October 2015, online at court website (http://www.ca2.uscourts.gov/ : accessed 18 Oct 2015). ↩
- Ibid. at 1-2. ↩
- Ibid. at 2-3. ↩
- Ibid. at 3. ↩
- See Complaint, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 19 Oct 2015). ↩
- See 17 U.S.C. § 504(c). ↩
- See 17 U.S.C. § 505. ↩
- See Larry Neumeister, “Google Books Lawsuit: Authors Guild Demands $3 Billion,” Huffington Post, posted 8 May 2013 (http://www.huffingtonpost.com : accessed 19 Oct 2015). ↩
- See “$125 Million Settlement in Authors Guild v. Google,” The Authors Guild (http://www.authorsguild.org/ : accessed 19 Oct 2015). ↩
- See opinion, 22 March 2011, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Copyright.gov (http://www.copyright.gov/ : accessed 19 Oct 2015). ↩
- See opinion, 1 June 2012, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 19 Oct 2015). ↩
- The Authors Guild et al. v. Google, Inc., No. 12-3200-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 1 July 2013, online at court website (http://www.ca2.uscourts.gov/ : accessed 19 Oct 2015). ↩
- Opinion, 14 Nov 2013, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at the website of the Southern District of New York (http://www.nysd.uscourts.gov/ : accessed 19 Oct 2015). ↩
- The Authors Guild et al. v. Google, Inc., 2d Cir. slip op. at 4. ↩
- Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97-98 (2d Cir. 2014). ↩
- The Authors Guild et al. v. Google, Inc., 2d Cir. slip op. at 23. ↩
- See generally Craig R. Scott, “A Publisher’s Point of View,” in “Keeping the lights on,” The Legal Genealogist, posted 8 Mar 2013 (https://www.legalgenealogist.com/blog : accessed 19 Oct 2015). ↩